S T A T E   O F   N E W   Y O R K
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                                  4138

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 29, 2015
                               ___________

Introduced by M. of A. WRIGHT -- read once and referred to the Committee
  on Ways and Means

AN  ACT  to amend the tax law, in relation to creating the office of the
  taxpayer advocate

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. The tax law is amended by adding two new sections 3014 and
3015 to read as follows:
  S 3014. OFFICE OF THE TAXPAYER ADVOCATE. (A) THERE  SHALL  BE  IN  THE
DEPARTMENT  AN  OFFICE  TO BE KNOWN AS THE "OFFICE OF THE TAXPAYER ADVO-
CATE". SUCH OFFICE SHALL BE UNDER THE SUPERVISION AND  DIRECTION  OF  AN
OFFICIAL  KNOWN AS THE "COMMISSIONER OF THE OFFICE OF THE TAXPAYER ADVO-
CATE". THE COMMISSIONER OF THE OFFICE OF THE TAXPAYER ADVOCATE SHALL  BE
APPOINTED BY THE GOVERNOR AND SHALL REPORT DIRECTLY TO THE COMMISSIONER.
THE COMMISSIONER OF THE OFFICE OF THE TAXPAYER ADVOCATE SHALL DEVOTE HIS
OR HER ENTIRE TIME TO THE DUTIES OF SUCH OFFICE.
  (B)  NO PERSON SHALL BE APPOINTED AS THE COMMISSIONER OF THE OFFICE OF
THE TAXPAYER ADVOCATE UNLESS AT THE TIME OF  SUCH  PERSON'S  APPOINTMENT
SUCH  PERSON  IS  A  RESIDENT  OF  THE STATE AND IS KNOWLEDGEABLE ON THE
SUBJECT OF TAXATION AND IS SKILLFUL IN MATTERS PERTAINING THERETO.  ONCE
APPOINTED, THE COMMISSIONER OF THE OFFICE OF THE TAXPAYER ADVOCATE SHALL
CONTINUE  IN  OFFICE  UNTIL  THE  GOVERNOR'S TERM EXPIRES AND UNTIL SUCH
GOVERNOR'S SUCCESSOR HAS BEEN APPOINTED AND HAS QUALIFIED. THE  TERM  OF
OFFICE SHALL BE AT THE PLEASURE OF THE GOVERNOR.
  (C)  IN  THE  EVENT  OF  A  VACANCY  CAUSED BY THE DEATH, RESIGNATION,
REMOVAL OR DISABILITY OF THE COMMISSIONER OF THE OFFICE OF THE  TAXPAYER
ADVOCATE, THE VACANCY SHALL BE FILLED BY THE GOVERNOR.
  (D)  (1)  THE OFFICE OF THE TAXPAYER ADVOCATE SHALL HAVE THE FOLLOWING
FUNCTIONS, POWERS, AND DUTIES:
  (I) TO ASSIST TAXPAYERS IN RESOLVING PROBLEMS WITH THE DEPARTMENT;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04976-01-5

              

A. 4138                             2

  (II) TO IDENTIFY AREAS IN WHICH TAXPAYERS HAVE  PROBLEMS  IN  DEALINGS
WITH THE DEPARTMENT;
  (III)  TO PROPOSE SOLUTIONS, INCLUDING ADMINISTRATIVE CHANGES TO PRAC-
TICES AND PROCEDURES OF THE DEPARTMENT;
  (IV) TO RECOMMEND LEGISLATIVE ACTION AS MAY BE APPROPRIATE TO  RESOLVE
PROBLEMS ENCOUNTERED BY TAXPAYERS;
  (V) TO PRESERVE AND PROMOTE THE RIGHTS OF THE TAXPAYER;
  (VI) TO PROMOTE OPEN AND DIRECT COMMUNICATIONS; AND
  (VII) TO APPOINT SUCH OFFICERS AND EMPLOYEES AS IT MAY REQUIRE FOR THE
PERFORMANCE OF ITS DUTIES.
  (2)  THE  COMMISSIONER  OF  THE  OFFICE OF THE TAXPAYER ADVOCATE SHALL
PREPARE AN ANNUAL REPORT AS TO HIS OR HER ACTIVITIES. SUCH REPORT  SHALL
BE SUBMITTED TO THE GOVERNOR, THE TEMPORARY PRESIDENT OF THE SENATE, THE
SPEAKER  OF THE ASSEMBLY, AND THE COMMISSIONER NO LATER THAN THE THIRTY-
FIRST OF DECEMBER NEXT SUCCEEDING THE EFFECTIVE DATE OF THIS SECTION AND
EVERY DECEMBER THIRTY-FIRST THEREAFTER. ANY SUCH  REPORT  SHALL  CONTAIN
FULL  AND  SUBSTANTIVE ANALYSIS, IN ADDITION TO STATISTICAL INFORMATION,
AND SHALL
  (I) IDENTIFY THE INITIATIVES THE COMMISSIONER OF  THE  OFFICE  OF  THE
TAXPAYER  ADVOCATE  HAS  TAKEN  ON  IMPROVING  TAXPAYER SERVICES AND THE
DEPARTMENT'S RESPONSIVENESS;
  (II) CONTAIN A SUMMARY OF AT LEAST FIFTEEN OF THE MOST  SERIOUS  PROB-
LEMS  ENCOUNTERED BY TAXPAYERS, INCLUDING A DESCRIPTION OF THE NATURE OF
SUCH PROBLEMS;
  (III) CONTAIN AN INVENTORY OF THE ITEMS DESCRIBED IN SUBPARAGRAPHS (I)
AND (II) OF THIS PARAGRAPH FOR WHICH  ACTION  HAS  BEEN  TAKEN  AND  THE
RESULT  OF  SUCH  ACTION;  AN  INVENTORY  FOR WHICH ACTION REMAINS TO BE
COMPLETED; AND AN INVENTORY FOR WHICH NO ACTION HAS BEEN TAKEN, AND  THE
REASONS FOR THE INACTION;
  (IV)  IDENTIFY  ANY TAXPAYER ASSISTANCE ORDER WHICH WAS NOT HONORED BY
THE DEPARTMENT IN A TIMELY MANNER AS SPECIFIED UNDER SUBDIVISION (A)  OF
SECTION THREE THOUSAND FIFTEEN OF THIS ARTICLE;
  (V)  CONTAIN  RECOMMENDATIONS  FOR SUCH ADMINISTRATIVE AND LEGISLATIVE
ACTION AS MAY BE APPROPRIATE TO RESOLVE PROBLEMS ENCOUNTERED BY  TAXPAY-
ERS; AND
  (VI)  INCLUDE SUCH OTHER INFORMATION AS THE COMMISSIONER OF THE OFFICE
OF THE TAXPAYER ADVOCATE MAY DEEM ADVISABLE.
  S 3015. TAXPAYER ASSISTANCE ORDERS. (A) THE COMMISSIONER OF THE OFFICE
OF THE TAXPAYER ADVOCATE MAY, WITH OR WITHOUT A FORMAL  REQUEST  FROM  A
TAXPAYER,  ISSUE  A  TAXPAYER ASSISTANCE ORDER THAT SUSPENDS OR STAYS AN
ACTION OR PROPOSED ACTION BY THE DEPARTMENT IF, IN THE DETERMINATION  OF
SUCH  COMMISSIONER,  THE  TAXPAYER  IS SUFFERING OR IS ABOUT TO SUFFER A
SIGNIFICANT HARDSHIP AS A RESULT OF THE MANNER IN WHICH  THE  DEPARTMENT
ADMINISTERS  THE  TAX LAWS.   A DETERMINATION BY SUCH COMMISSIONER UNDER
THIS SECTION TO ISSUE OR TO NOT ISSUE A  TAXPAYER  ASSISTANCE  ORDER  IS
FINAL AND CANNOT BE APPEALED TO ANY COURT.
  (B)  A TAXPAYER ASSISTANCE ORDER MAY REQUIRE THE DEPARTMENT TO RELEASE
PROPERTY OF THE TAXPAYER LEVIED ON, CEASE ANY  ACTION  OR  REFRAIN  FROM
TAKING  ANY  ACTION  TO  ENFORCE THE STATE TAX LAWS AGAINST THE TAXPAYER
UNTIL THE  ISSUE OR ISSUES GIVING RISE TO THE ORDER HAVE BEEN RESOLVED.
  (C) THE RUNNING OF THE  APPLICABLE  PERIOD  OF  LIMITATIONS  FOR  SUCH
DEPARTMENT  ACTION  SHALL  BE  SUSPENDED FROM THE DATE OF THE TAXPAYER'S
REQUEST FOR A TAXPAYER ASSISTANCE ORDER OR THE DATE THE ORDER IS ISSUED,
WHICHEVER IS EARLIER, UNTIL ONE OF THE FOLLOWING SHALL OCCUR:
  (1) THE EXPIRATION DATE OF THE ORDER.

A. 4138                             3

  (2) IF AN ORDER IS MODIFIED, THE EXPIRATION DATE OF  THE  MODIFICATION
ORDER.
  (3) IF AN ORDER IS RESCINDED, THE DATE OF THE RESCISSION ORDER.
  (D)  A  TAXPAYER  ASSISTANCE  ORDER  SHALL  NOT BE USED TO CONTEST THE
MERITS OF A TAX LIABILITY OR AS A SUBSTITUTE FOR INFORMAL PROTEST PROCE-
DURES OR ADMINISTRATIVE OR JUDICIAL PROCEEDINGS FOR THE REVIEW OF A  TAX
ASSESSMENT OR COLLECTION ACTION OR DENIAL OF REFUND.
  S  2.  Subdivisions 1, 3 and 4 of section 170 of the tax law, subdivi-
sions 1 and 3 as amended by chapter 282 of the laws of 1986 and subdivi-
sion 4 as amended by chapter 283 of the laws of  1986,  are  amended  to
read as follows:
  1.  The  existing  department  of taxation and finance and its present
functions are continued. The head of  the  department  of  taxation  and
finance shall be the commissioner of taxation and finance who shall have
sole  charge of the administration of such department except with regard
to the administration of the division of tax appeals which shall be  the
sole  charge  of the tax appeals tribunal authorized by article forty of
this chapter AND THE OFFICE  OF  THE  TAXPAYER  ADVOCATE  AUTHORIZED  BY
SECTIONS  THREE  THOUSAND  FOURTEEN  AND  THREE THOUSAND FIFTEEN OF THIS
CHAPTER.  The commissioner of taxation and finance shall be appointed by
the governor by and with the advice and consent of the senate and  shall
hold office as commissioner of taxation and finance until the end of the
term  of  the  governor by whom he was appointed and until his successor
has been appointed and has qualified.
  3. The commissioner of taxation and finance may establish  such  addi-
tional  divisions  and  bureaus as he may deem necessary. He may appoint
the heads of such divisions and bureaus and fix their duties and he  may
consolidate, alter or abolish any divisions or bureaus, except that such
commissioner  shall  have  no such authority or power with regard to the
division of tax appeals AND THE OFFICE OF THE TAXPAYER ADVOCATE.
  4. The commissioner of taxation and finance  may  appoint  and  remove
such  officers,  assistants and other employees as he may deem necessary
for the exercise of the powers and duties of the department, all of whom
shall be in the classified civil service unless  otherwise  provided  by
law; and he may prescribe their duties, and fix their compensation with-
in  the  amounts appropriated therefor. The commissioner of taxation and
finance may transfer officers or employees from their positions to other
positions in the department, or abolish or consolidate  such  positions.
He  shall have all powers necessary to perform the duties conferred upon
him regarding the state lottery authorized  by  article  thirty-four  of
this  chapter.  However,  the commissioner of taxation and finance shall
have no power to appoint or remove any personnel of the division of  tax
appeals OR OF THE OFFICE OF THE TAXPAYER ADVOCATE nor shall such commis-
sioner  have  any  power  or  authority with regard to the operation and
administration of such division OR OFFICE including any power or author-
ity over such division's OR  OFFICE'S  budget.  The  commissioner  shall
furnish to the director of the division of the budget the itemized esti-
mates  of  the  financial  needs  of the division of tax appeals AND THE
OFFICE OF THE TAXPAYER ADVOCATE prepared by the tax appeals tribunal AND
THE OFFICE OF THE TAXPAYER ADVOCATE. Such itemized estimates may not  be
revised or altered in any manner by the commissioner.
  S  3.  This act shall take effect immediately; provided, however, that
section 3015 of the tax law, as added by section one of this  act  shall
not  take effect until the later of April first next succeeding the date
on which it shall have become a law, or the latest  date  on  which  any
state  appropriations  relating  to  the operations of the department of

A. 4138                             4

taxation and finance for the state fiscal year commencing on such  April
first, becomes law; provided, however, that the commissioner of taxation
and finance shall take all steps necessary to promulgate rules and regu-
lations  necessary to achieve the intent and purposes of this act and to
implement this act prior to such April first  so  that  such  rules  and
regulations  shall  be  effective  on the effective date of such section
3015 of the tax law.